Harbison v. Johnston

• Decision Date: 22 June 2001
• Docket Number: No. 21,395.,21,395.
• Citation: 130 N.M. 595,28 P.3d 1136
• Parties: Richard Luis HARBISON, Petitioner-Appellee, v. Jennifer Camille JOHNSTON, Respondent-Appellant.
• Court: Court of Appeals of New Mexico

28 P.3d 1136

130 N.M. 595

Richard Luis HARBISON, Petitioner-Appellee, v. Jennifer Camille JOHNSTON, Respondent-Appellant.

No. 21,395.

Court of Appeals of New Mexico.

June 22, 2001.

Shane A. English, Keithly & English, P.C., Anthony, NM, for Appellee.

Daniel L. Romero, Law Office of Daniel L. Romero, Las Cruces, NM, for Appellant.

OPINION

SUTIN, Judge.

{1} In this appeal we resolve an interstate child support enforcement and modification jurisdictional dispute. Respondent Jennifer Johnston (Mother) appeals the district court's order dismissing, on jurisdictional grounds, her motion to modify and enforce the child support provisions of a Texas support and visitation judgment. Mother raises two issues: (1) whether Petitioner Richard Harbison (Father) submitted to personal jurisdiction in the New Mexico district court when he initiated proceedings to enforce the visitation provisions of the Texas judgment, and (2) whether the district court had subject matter jurisdiction to modify or enforce the child support provisions of the same judgment. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

BACKGROUND

{2} The facts are undisputed. Mother and Father are parents of a child (Child) born in El Paso, Texas, in May 1995. When Child was one year old, Father filed an action in Texas district court to establish paternity. On November 8, 1996, the Texas court entered a judgment regarding Child, adjudicating Father as parent, granting Mother permanent custody, awarding Father visitation rights, and ordering Father to pay child support.

{3} For about two years, Father exercised his visitation rights in accordance with the Texas judgment. In July 1998 Mother and Child moved from El Paso to Las Cruces, New Mexico, so Mother could finish her studies at New Mexico State University. In August 1998 Father moved to California to perform temporary work on a reservoir construction project, whereupon his visitation with Child ceased, except for one week in late 1998 when Child visited him in California. After living in California for approximately nine months, Father returned to El Paso and tried, unsuccessfully, to resume visitation with Child, who continued to live with Mother in Las Cruces.

{4} In November 1999 Father filed a petition in New Mexico district court, requesting that it recognize and enforce the visitation provisions (visitation order) in the Texas judgment and hold Mother in contempt for violating its requirements. Mother responded to the petition and also filed a countermotion to modify and enforce the child support provisions (support order) in the Texas judgment. She served child support discovery requests on Father that Father countered with a motion to dismiss the child support action. Father argued that the New Mexico court had neither personal jurisdiction nor subject matter jurisdiction to modify and enforce the Texas support order and that Texas had continuing, exclusive jurisdiction over the support order.

{5} Following an evidentiary hearing on Father's visitation petition, the district court entered an order giving full faith and credit to the Texas judgment, modifying its visitation provisions, and ordering the parties to submit to mediation for the purpose of developing a long-term parenting plan. Following a later hearing, the district court dismissed Mother's motion to modify and enforce the Texas judgment regarding child support. The district court determined New Mexico lacked both subject matter jurisdiction and personal jurisdiction over Father, and concluded Texas retained exclusive jurisdiction over the support order. Mother appeals from the dismissal.

DISCUSSION

I. Standard of Review

{6} Where the relevant facts are undisputed, as in this case, we review de novo the district court's application of the law to the facts. Caba Ltd. Liab. Co. v. Mustang Software, Inc., 1999-NMCA-089, ¶ 9, 127 N.M. 556, 984 P.2d 803.

II. Whether the District Court Had Personal Jurisdiction Over Father in the Support Proceeding

A. Preservation of the Personal Jurisdiction Issue

{7} Father argues that Mother failed to preserve her contention that the New Mexico court had personal jurisdiction over Father. "To preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked[.]" Rule 12-216(A) NMRA 2001; Woolwine v. Furr's, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct.App.1987). In determining whether an appellate issue was preserved for review, we consider the primary purposes of the preservation rule: "(1) that the trial court be alerted to the error so that it is given an opportunity to correct the mistake, and (2) that the opposing party be given a fair opportunity to meet the objection." Gracia v. Bittner, 120 N.M. 191, 195, 900 P.2d 351, 355 (Ct.App. 1995) (citing Garcia v. La Farge, 119 N.M. 532, 540, 893 P.2d 428, 436 (1995)). Both purposes of the preservation requirement were met in this case.

{8} Mother did not specify that, pursuant to the Uniform Interstate Family Support Act (UIFSA), NMSA 1978, § 40-6A-201 (1994), Father submitted to New Mexico jurisdiction by filing his November 1999 petition to enforce the Texas visitation order. The issue whether the district court had personal jurisdiction over Father, however, was squarely before the court. Mother argued the district court had personal jurisdiction. Father argued the district court lacked personal jurisdiction over him pursuant to Section 40-6A-201 and argued he did not submit to the jurisdiction of New Mexico for any purpose other than to enforce the Texas visitation order. In granting Father's motion to dismiss, the district court found that it lacked personal jurisdiction pursuant to Section 40-6A-201, the specific statutory provision Mother raises on appeal. Thus, the district court was clearly alerted to the issue of personal jurisdiction under Section 40-6A-201, as well as the specific issue whether Father submitted himself to the jurisdiction of New Mexico based on his initiation of the visitation enforcement proceeding.

B. Merits of the Personal Jurisdiction Issue

{9} Section 40-6A-201 provides several bases for a New Mexico district court to exercise long-arm jurisdiction over a non-resident individual in a child support proceeding under the UIFSA. According to Section 40-6A-201(2), a court may exercise personal jurisdiction over a non-resident when "the individual submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction." Moreover, a New Mexico court may assert jurisdiction over a non-resident if "there is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction." Section 40-6A-201(8). Thus, the long-arm provision of the UIFSA permits the broadest assertion of jurisdiction over a non-resident child support obligor consistent with the New Mexico and United States Constitutions. Bearing these provisions and precepts in mind, we address whether the district court had any basis to exercise personal jurisdiction over Father.

{10} A general appearance is made when a party goes beyond contesting the jurisdiction of the court and requests affirmative relief, such as full faith and credit and enforcement of a foreign decree. State ex rel. Valles v. Brown, 97 N.M. 327, 331, 639 P.2d 1181, 1185 (1981); see also In re Marriage of Adler, 271 Ill.App.3d 469, 208 Ill.Dec. 31, 648 N.E.2d 953, 956 (1995) ("When a party requests affirmative relief prior to a ruling on his objections to the court's personal jurisdiction, he waives all objections to the court's in personam jurisdiction."); In re Marriage of Peck, 82 Wash.App. 809, 920 P.2d 236, 238-39 (1996) (recognizing that even though a party objects to personal jurisdiction, he may waive the defense of lack of jurisdiction "by seeking affirmative relief, thereby invoking the jurisdiction of the court") (citations and internal quotation marks omitted).

{11} Father entered a general appearance pursuant to Section 40-6A-201(2) when he filed his visitation enforcement petition. He invoked the jurisdiction of the district court. Once Father invoked and submitted himself to the jurisdiction of New Mexico, he could not then attempt to limit his appearance solely to attacking the personal jurisdiction of the court in the support portion of the proceedings. Brown, 97 N.M. at 331, 639 P.2d at 1185; cf. Murphy v. Murphy, 96 N.M. 401, 405, 631 P.2d 307, 311 (1981) (concluding that jurisdiction over respondent "became complete when he appeared and participated in the hearing on the merits," particularly when he had previously entered a special appearance in the matter); Sanchez v. Sanchez, 107 N.M. 159, 161, 754 P.2d 536, 538 (Ct.App.1988) (determining that father "consented to jurisdiction through his filing of various motions and his participation in the hearings and trial on the merits").

{12} Father, however, disagrees based on the "limited immunity" provision of Texas' Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), which states in pertinent part:

A party to a child custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child custody determination, is not subject to personal jurisdiction in this state for another proceeding or purpose solely by reason of having participated, or of having been physically present for the purpose of participating, in the proceeding.

Tex. Family Code Ann. § 152.109(a) (1999). The UCCJEA, however, has not been adopted in New Mexico and is therefore inapplicable. We find no such limited immunity provision in the law governing the visitation proceeding in this case, that is, the New Mexico Child Custody Jurisdiction Act (CCJA), NMSA 1978, §§ 40-10-1 to -24 (1981, as amended...